The opinion of the court was delivered by: Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Petitioner Thomas Adams ("Adams") filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent Nedra Chandler ("Chandler"), Warden of the Dixon Correctional Center, moves to dismiss the petition as untimely. For the following reasons, the Court grants Chandler's Motion to Dismiss with prejudice.
The Court adopts the undisputed underlying facts set forth by the Illinois appellate court. See 28 U.S.C. § 2254(e)(1); see also Virsnieks v. Smith, 521 F.3d 707, 714 (7th Cir. 2008).
On August 15, 2001, Adams pled guilty to unlawful possession of a stolen motor vehicle and reckless homicide. (Doc. 14, Ex. A at C360-61.) The Court sentenced Adams to a twenty-five year term of imprisonment for reckless homicide pursuant to 720 ILCS 5/9-3(a), (e-5), and an eight-year concurrent sentence for unlawful possession of a stolen motor vehicle pursuant to 625 ILCS 5/4-103(a)(1). (Id. at C489; Ex. F at C95-96.) Adams filed a motion to reconsider his sentence on September 11, 2011, which the trial court denied on October 2, 2001. (Doc. 14, Ex. B at 2.) The Illinois appellate court affirmed the sentence on June 9, 2003, but awarded a sentence credit. (Doc. 14, Ex. C at 2.) Following this ruling, Adams did not seek leave to appeal to the Supreme Court of Illinois or the United States Supreme Court.
Four years later, on November 15, 2007*fn1 , Adams filed a pro se post-conviction petition, arguing that the Supreme Court of Illinois, in People v. Pomykala, 784 N.E.2d 784 (Ill. 2003), struck down a portion of the reckless homicide statute, rendering his sentence invalid. (Doc. 14, Ex. D at C31.) Adams also alleged that his sentence was excessive when compared to others convicted of reckless homicide. (Id. at C36.) The state trial court denied the post-conviction petition on February 21, 2008. (Id. at C65.) Adams timely appealed the trial court decision and the Illinois appellate court affirmed the dismissal on March 3, 2010. (Doc. 14, Ex. B.) The Supreme Court of Illinois affirmed that decision on May 26, 2010. See People v. Adams, 932 N.E.2d 1031 (Ill. 2010). Adams did not petition the United States Supreme Court for a writ of certiorari.
Eight months later, on January 26, 2011, Adams filed the present petition for writ of habeas corpus.
I. Timeliness of the Petition
The Antiterrorism and Effective Death Penalty Act ("AEDPA") provides that a 1--year period of limitation shall apply to an application for writ of habeas corpus by a person in custody pursuant to the judgment of a state court. 28 U.S.C. 2244(d)(1). As is relevant here, the statute begins to run from the latest of: the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. Id.
Here, the Illinois appellate court affirmed Adams's sentence on June 9, 2003, and Adams had twenty-one days to appeal that decision to the Supreme Court of Illinois.*fn2 Adams did not pursue an appeal, and as such, his conviction became final on June 30, 2003. Accordingly, Adams had one year of untolled time-until June 30, 2004-to file his habeas petition.
Instead, over three years past that deadline, on November 15, 2007, Adams filed a post-conviction petition. Adams now argues that his January 26, 2011 habeas petition was timely filed because his post-conviction petition remained before Illinois courts until May 26, 2010. Adams, however, is mistaken. A post-conviction petition merely excludes time from the tolling period, it does not restart the period. See De Jesus v. Acevedo, 567 F.3d 941, 943 (7th Cir. 2009); see also Escamilla v. Jungwirth, 426 F.3d 868, 870 (7th Cir. 2005) (finding that a state collateral proceeding after the one-year statute has expired does not have an effect under § 2244(d)(2)). Moreover, the one-year statute had expired over three years ...